Background
The Copyright Law, Trademark Law, Industrial Design Law and Patent Law were passed in 2019. However, only the Trademark Law is currently in force (having taken effect on 1 April 2023).
On 7 August 2023, the MIPD announced that the Copyright Law is anticipated to come into force in October 2023 and the corresponding rules will be issued in due course. The Copyright Law will repeal Copyright Act 1914, which was enacted over a century ago and is currently in force.
Key features
The Copyright Law heralds a new era of copyright protection in Myanmar as the country strives to establish a functioning framework for the protection of copyright works that is attuned to modern day demands.
A key feature of the Copyright Law is its protection of foreign copyright works, which represents a shift away from the current position where creative works are only protected if they are published in Myanmar or created by Myanmar citizens. This has posed a significant challenge for foreign companies seeking to protect their works under Myanmar's current copyright regime.
When the Copyright Law comes into force, copyright protection will be granted to works that are first published in Myanmar; or if it was published in another country, also published in Myanmar within 30 days from the first foreign publication, irrespective of the nationality or habitual residence of the author (see Chapter VII (Scope of Application) of the Copyright Law). This paves the way for foreign rights holders to enforce copyright and other related rights in Myanmar.
The move to modernize the copyright regime in Myanmar can also be seen from the introduction of new concepts in the Copyright Law, such as the following:
- Computer programs are now protected as literary or artistic works (see Section 13 of the Copyright Law).
- A distinction is drawn between economic rights and moral rights of copyright owners (see Chapter X (Economic Rights and Moral Rights) of the Copyright Law), wherein the protection of an author's moral rights, such as the right of attribution and the right to integrity, is now statutorily enshrined.
- Chapter XIX of the Copyright Law provides for the formation of collective management organizations, which are imbued with the authority to act on behalf of rights holders in relation to copyright or related rights.
- In line with the rise of global digitalization, the unauthorized removal or alteration of digital rights management information and the circumvention of technological protection measures are now strictly prohibited under Chapter XV of the Copyright Law.
With the Copyright Law, the terms of protection for various rights will also be brought in line with international standards and practice. For example, copyright in literary or artistic works will subsist throughout the life of the author and 50 years after death; works of applied art will be protected for a term of 25 years from the making of the work (see Chapter IX (Term of Copyright) of the Copyright Law). Meanwhile, moral rights subsist with the author of a work for life.
The new Copyright Law also provides for a voluntary system of registration of copyright (see Chapter XVI (Registration of Copyright or Related Rights) of the Copyright Law). This does not change the fact that copyright protection automatically arises without the need for registration, although authors or owners of copyright can now register such works "in order to have sufficient evidence" of said rights.
Offences
As per the current law, civil and criminal copyright infringement actions will also be available under the new Copyright Law.
However, the new Copyright Law stipulates that it is an offence to reproduce, communicate or distribute to the public a copyrighted work, and possess and/or import infringing goods for a commercial purpose, without the consent of the right holder (see Chapter XXIII (Offences and Penalties) of the Copyright Law). These offences trigger a minimum penalty of imprisonment for a term not exceeding three years and/or a maximum fine of MMK 1 million (about USD 660). Repeat offenders will be subject to imprisonment of a maximum of 10 years and a maximum fine of MMK 10 million (about USD 6,600). These penalties reflect a substantial increase from the current regime.
Importantly, the new Copyright Law also provides for various defences to copyright infringement under Chapter XII (Limitations and Exceptions of Economic Rights). These statutory "fair use" defences include, among others, reporting current events; reproduction of literary and artistic works by libraries for non-commercial purposes such as study, teaching or private research; and the reproduction of the copy of a computer program as a back-up for personal use.
Key takeaways
In conclusion, the new Copyright Law seeks to bring Myanmar's copyright regime in line with international standards so as to improve the standard of protection of literary and artistic works, as well as related performer, phonogram and broadcasting rights.
The modernization of Myanmar's copyright environment is also supported by enhanced enforcement powers granted to newly established Intellectual Property Courts (see Chapter XXII) and the Customs Department (see Chapter XXI).
Rights owners should prepare for the coming into force of the new Copyright Law by reviewing current and prospective works in Myanmar, and understanding whether such works, including foreign works, may qualify for protection. We recommend that rights owners be prepared to file applications to voluntarily register copyright ownership to establish evidence of rights, which will facilitate licensing arrangements concerning copyright protected works and enforcement against unauthorized third party use.
We will continue to monitor the developments around Myanmar's new Copyright Law. Should you have questions regarding this topic, please do not hesitate to contact us.
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